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No, Alabama has not become a theocracy

Understanding law and history in the Alabama Supreme Court’s IVF decision

The Alabama Supreme Court building in Montgomery, Ala. Associated Press/Photo by Kim Chandler

No, Alabama has not become a theocracy
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Last week, the Alabama Supreme Court decided a case about how an Alabama tort statute applies to in vitro fertilized human embryos. It immediately made headlines and generated lots of discussion and disagreement—about IVF, about abortion, and about the role of religion. It’s the place of religion in the court decision that I want to focus on. Critics say the discussion of religion in the court’s decision shows that the Alabama court is flirting with theocracy, at odds with the First Amendment. Not so. Such a claim misrepresents the Alabama decision, the First Amendment, and the place of religion in legal history.

First, the decision: Despite the cries of “theocracy” by onlookers, the court decision is narrow, focused on a very specific legal issue. It helps to get the facts straight. An unauthorized person entered the freezers at an Alabama fertility clinic and accidentally disturbed several embryos, leading to their death. These embryos belonged to three different couples who had received IVF treatment at the clinic. The couples sued the clinic.

The parents invoked Alabama’s wrongful death statute. This is the statute that someone might invoke if a family member was negligently killed in a car accident and it allows family members to seek to recover money damages after such a negligent death. Alabama has a wrongful death statute that specifically allows the parents of a “minor child” to bring a lawsuit if the child is wrongfully or negligently killed. The trial court dismissed their claims, saying that the embryos were not “children” within the meaning of the statute.

The Alabama Supreme Court disagreed and said that the word "child" includes unborn children, so this falls within the scope of the statute. Now the case will go back to the trial court to let the couples try to prove their case.

The Alabama decision is thought-provoking, to be sure. But the first point to realize is that, despite nationwide scrutiny, the legal issue here was very specific. The court was asking simply whether one Alabama statute includes unborn children within its scope. This was no exercise of juristocracy. To the contrary, it was a court doing what courts normally do—figuring out what the law means by deciding a case among real people with a real problem. 

Second, look again at the place of religion in the decision: From reading the press coverage or the buzz on social media, it’s clear that many people confuse the majority opinion with a concurrence by one justice. The majority opinion merely engages in ordinary analysis of the text of the statute. Nothing in it could be construed as religious. 

It would be quite bizarre if the First Amendment prohibits our courts from grappling with the history of law. 

The concurrence by Chief Justice Parker does discuss the Bible and the views of historical theologians. But this was no religious establishment, certainly not a First Amendment problem. Chief Justice Parker may have been more direct than most judges in exploring the theological sources that influenced American law. And there’s doubtless room for debate about precisely which sources are most important on any given issue. But the critics of the Alabama decision aren’t saying that he did his intellectual history poorly. The objection seems to be to doing this kind of history at all.

Understand what Chief Justice Parker’s opinion did. His point that the Alabama constitution can inform the court’s interpretation of the wrongful death statute. That’s sensible and one would normally think that it’s good to interpret the law of a state so that laws cohere. What’s the most relevant provision in the state constitution? It turns out that the state constitution specifically says that it “is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” If the “sanctity of life” is in the Alabama Constitution, one would think that a judge might want to understand what it means. In order to understand what legal words mean, all judges will consider history.

Where might one look, historically, to understand the meaning and intellectual origins of the concept of “sanctity of life”? It should surprise no one that Bible and the history of Jewish and Christian thought are quite significant. And it should not be surprising that this religious tradition based in the Scripture has had a great influence on American law.

Certainly, not everyone in America today thinks that the influence of the Bible or of Christian thought on the law is good. But it is impossible to deny this influence as a historical fact. Religion has influenced American law in countless ways (this is why the U.S. Supreme Court has a depiction of Moses carrying the Ten Commandments on the wall). It would be quite bizarre if the First Amendment prohibits our courts from grappling with the history of law. 

This in turn reveals that critics of the Alabama decision may have a deeper problem than their dislike of the Alabama court’s decision. For if they ultimately object to the Bible’s influence on American law, they have a lot of history to unwind. Law reflects moral values. Moral values are shaped by religious faith. For most of the history of American law—and of the common law of England, from which much of our law was drawn—that religious faith was Christianity.

It was the Bible, and Jewish and Christian thought about the Bible and ethics and human nature, that shaped fundamental concepts in law—not just the importance and sanctity of life, but other fundamental legal concepts like fault, guilt, proportional punishment, unbiased judging, the requirement of witnesses, the importance of oaths, and much more. If one objects to Christianity’s influence on American law, it’s not just the “sanctity of life” that must be excised.

Lael Weinberger

Lael Weinberger is a lawyer and historian. He is a fellow of the Constitutional Law Center at Stanford Law School.

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